Rojas-Tapia v. United States

• Decision Date: 01 May 2020
• Docket Number: Related Crim. No. 99-385 (PG),CIVIL NO. 17-1759 (DRD),Related Crim. No. 99-309 (DRD),CIVIL NO. 17-1758 (PG)
• Citation: 458 F.Supp.3d 111
• Parties: José ROJAS-TAPIA, Petitioner v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Puerto Rico

458 F.Supp.3d 111

José ROJAS-TAPIA, Petitioner

v.UNITED STATES of America, Respondent.

CIVIL NO. 17-1758 (PG)

Related Crim. No. 99-385 (PG)

CIVIL NO. 17-1759 (DRD)

Related Crim. No. 99-309 (DRD)

United States District Court, D. Puerto Rico.

Signed May 1, 2020

Eleonora C. Marranzini, Eric A. Vos, Federal Public Defender's Office, Hato Rey, PR, for Petitioner.

Mariana E. Bauza, United States Attorneys Office, San Juan, PR, for Respondent.

OPINION AND ORDER

JUAN M. PEREZ-GIMENEZ, SENIOR U.S. DISTRICT JUDGE

Before the court is Petitioner Jose Rojas-Tapia's ("Petitioner" or "Rojas-Tapia") motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. See Docket No. 1. Petitioner argues that his conviction and sentence should be vacated because the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii), was declared unconstitutionally vague in Johnson v. United States ("Johnson II"), 576 U.S. 591, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015). He also argues that the residual clause of Section 924(c) for which he was convicted, as well as the pre- Booker ¹ Career Offender guideline's residual clause² under which he was sentenced, are both invalid under Johnson II. For these reasons, Rojas-Tapia requests that this court vacate his convictions and sentences, and resentence him accordingly. The United States opposed each of Petitioner's arguments. See Docket No. 18.

For the reasons discussed as follows, the court DENIES Petitioner's motion to vacate.

I. BACKGROUND

In 1999, Rojas-Tapia was charged in two separate indictments for robbing postal offices and putting his victims’ lives in jeopardy through the use of dangerous weapons. The first indictment was filed in September of 1999 (Criminal Case No. 99-309 (DRD)). It charged the petitioner with six counts based on events that took place on September 2, 1999, namely: (1) aiding and abetting in an assault on postal employees with the intent to rob, jeopardizing lives in the commission of the offense by using dangerous weapons in violation of 18 U.S.C. § 2114(a) and 2 (Count One); (2) using and carrying firearms during and in relation to the crime charged in Count One, in violation of 18 U.S.C. §§ 924(c) and 2 (Counts Two and Three); (3) possessing firearms in a federal facility, in violation of 18 U.S.C. §§ 930(b) and 2 (Count Four); (4) being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(e) (Count Five); and (5) attempting to kill police officer Luis Castro in the course of possessing firearms in a federal facility, in violation of 18 U.S.C. §§ 930(c) and 2 (Count Six). See Presentence Investigation Report , Crim. No. 99-385 (PG), Docket No. 66 at pages 1-2.

The second indictment was filed on December 27, 1999. The charges brought therein were in relation to another postal office robbery that occurred on August 10, 1999. Petitioner was charged in this subsequent criminal case, 99-cr-385(PG), with the following: (1) aiding and abetting in an assault on postal employees with the intent to rob, jeopardizing lives during the commission of the offense by using dangerous weapons in violation of 18 U.S.C. §§ 2114(a) and 2 (Count One); (2) using and carrying firearms during and in relation to the crime charged in Count One in violation of 18 U.S.C. §§ 924(c) and 2 (Count Two and Three); (3) possessing firearms in a federal facility in violation of 18 U.S.C. §§ 930(b) and 2 (Count Four); and (4) being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(e) (Count Five). See id. pg. 1-2.

Both criminal cases were consolidated for plea and sentence. Rojas-Tapia plead guilty to all counts on October 20, 2000. See id. pg. 3. On October 10, 2001, the court sentenced Rojas-Tapia in Crim. No. 99-385 (PG) to 262 months as to Count 1, 60 months as to Count 4, and 180 months as to Count 5, all to be served concurrently with each other and concurrently with Counts 1, 4 and 5 in Crim. No. 99-309 (DRD). See Crim. No. 99-385 (PG), Docket No. 99 at pg. 2. The court also sentenced him to 84 months for Count 2 and 120 months for Count 3, to be served consecutively to the term of imprisonment imposed in Crim. No. 99-309 (DRD), for a resulting total of 382 months. See id. at pg. 3. For the counts in Crim. No. 99-309 (DRD), the court sentenced Rojas-Tapia to 262 months as to Count 1, 60 months as to Count 4 and 180 months as to Count 5, all to be served concurrently with each other and with counts 1, 4, 5 in Crim. No. 99-385 (PG). See Crim. No. 99-309 (DRD), Docket No. 268 at pg. 2. For Counts 2 and 3, the Court added 300 months to be served concurrently with each other but consecutively to the sentence imposed on the remaining counts. See id. pg. 3. Petitioner was sentenced to a total of 682 months (382 + 300) of imprisonment.

II. STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 2255, a federal prisoner may move to vacate, set aside, or correct his sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the Court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C § 2255(a) ; Hill v. United States, 368 U.S. 424, 426-427, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) ; Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002).

III. DISCUSSION

On December 21, 2018, Rojas-Tapia filed the above-captioned motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 attacking his conviction and sentence. See Docket No. 1. In his petition, Rojas-Tapia argues that his sentences violate due process and are no longer authorized by law. See Docket No. 1 at pg. 1. Specifically, Rojas-Tapia claims that pursuant to Johnson II: (1) he no longer qualifies as an Armed Career Criminal because his prior convictions are not "violent felonies" under the ACCA's force clause, (2) he is not guilty of Counts Two and Three of both criminal cases since they no longer qualify as a "crime of violence" under 18 U.S.C. § 924(c)(3)(B) ’s unconstitutional residual clause, and (3) he no longer qualifies for an enhanced base offense level of 26 under USSG 2K2.1(a)(1), because absent the unconstitutional residual clause in USSG § 4B1.2(a)(2), his prior convictions are no longer "crimes of violence." See Docket No. 1 at pg. 1-2.

A. ACCA Enhancement under 18 U.S.C. § 924(e)

Under the ACCA, a defendant may be convicted as a career criminal for the possession of a firearm when the offender has three or more prior convictions for a violent felony or a serious drug offense. See 18 U.S.C. § 924(e)(1). The ACCA defines the term "violent felony" as any crime punishable by imprisonment for a term exceeding one year, that (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another," (the force clause), or (2) "is burglary, arson, or extortion, [or] involves use of explosives" (the enumerated offenses clause). 18 U.S.C. § 924(e)(2)(B). With regards to the force clause at issue here, the term "physical force" means "violent force—that is, force capable of causing physical pain or injury to another person." United States v. Starks, 861 F.3d 306, 314 (1st Cir. 2017) (citing Johnson v. United States ("Johnson I"), 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ).

To determine whether a defendant's prior conviction for a certain crime satisfies the force clause, courts must apply the "categorical approach." See Starks, 861 F.3d at 315. "This means that a prior conviction will either count or not based solely on the fact of conviction rather than on facts particular to the individual defendant's case." United States v. Faust, 853 F.3d 39, 50 (1st Cir. 2017) (citing Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)) (finding that "the only plausible interpretation" of the ACCA is that "it generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense"). "The categorical or modified categorical approach ‘applies not just to jury verdicts, but also to plea agreements.’ " United States v. Mohamed, 920 F.3d 94, 101 (1st Cir. 2019) (citing Descamps v. United States, 570 U.S. 254, 262-63, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ).

Rojas-Tapia has various prior convictions that could be enough to trigger the ACCA's enhancement provision, starting with a serious drug offense, as well as several violent felonies. These shall be discussed in turn.

1. Serious Drug Offense

The relevant definition of "serious drug offense" under the ACCA is "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act ( 21 U.S.C. 802 ), for which a maximum term of imprisonment of ten years or more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii). It stems from the Presentence Report in this case that Petitioner was previously convicted of violating Article 401 of the Puerto Rico Controlled Substances Law.³ See PSR , Crim. No. 99-385 (PG), Docket No. 66 at ¶ 61. Section 2401 of said statute states that "... it shall be unlawful for any person knowingly or intentionally: (1) to ... possess with the intent to ... distribute ... a controlled substance." P.R. LAWS ANN. tit. 24, § 2401. Violating § 2401 carries a maximum term of imprisonment of 20 years. See id. Specifically, Rojas-Tapia was charged with possessing with the intent to distribute 256 capsules of cocaine (approximately one ounce of cocaine) on July 28, 1996. See id. at ¶ 61. On January 14, 1997, Rojas-Tapia pled guilty to this charge and was sentenced. Id.

Since the Petitioner was convicted under state law for possessing cocaine with the intent to distribute, and that crime carried a maximum penalty of more than 10 years of imprisonment, the...